Scottish Court of Session Decisions

Messrs Cohen & Van der Laan, wholesale margarine dealers, Glasgow, were charged in the Sheriff Court at Glasgow at the instance of James Neil Hart, Procurator-Fiscal of Court, on a complaint which set forth that the respondents, “being wholesale dealers in margarine, and having a place of business as such at 22 North Albion Street, Glasgow, did on 4th October 1901 in the said place of business refuse to produce to Mr Haygarth Brown, an officer of the Board of Agriculture, when required by him to do so, the register kept by them in terms of section 7 (1) of the Sale of Food and Drugs Act 1899, contrary to section 7 (3) ( b) of said Act, whereby the said Messrs Cohen & Van der Laan are liable on summary conviction for said offence—which is a first offence—to a fine not exceeding £10.” The Sheriff-Substitute ( Fyfe), after evidence had been led, convicted the respondents, and imposed a fine of 10s.

The respondents appealed to the Court of Session upon a stated case.

The case set forth the following facts as proved:—“(1) That the appellants are a firm having a place of business in Glasgow, where they carry on the trade of wholesale dealers in margarine; (2) That they kept there the register required by section 7 of the Food and Drugs Act 1899; (3) That on 4th October 1901 an officer of the Board of Agriculture called at the appellants' premises to inspect this register; (4) That Mr Isadore Cohen, a partner of the appellants' firm, who was in charge of the Glasgow warehouse, placed the register open before the officer; (5) That the officer began to make notes of the contents of the register; (6) That thereupon Mr Cohen removed the register and declined to allow the officer to make notes.”

The questions of law for the opinion of the Court were—“(1) Does the power of inspection conferred upon the officer by section 7 of the Food and Drugs Act 1899 entitle the officer to make notes of the contents of the register; (2) Is refusal to permit an officer so to make notes a contravention of the Statute, section 7 (3) ( b)?”

The respondents' counsel stated that they had an objection to the competency of the appeal upon the ground that it should have been brought in the High Court of Justiciary and not in the Court of Session, but that they did not propose to press this objection because they wished to obtain a decision upon the merits.

Argued for the appellants—The Sheriff was wrong in holding that the appellants were bound to allow the officer to make notes of the contents of the register. Such inquisitorial powers had been very strictly construed, and the appellants had a good ground of refusal, viz., that the register disclosed their whole business transactions. It might be otherwise in criminal cases, but this was a civil matter— Mutter v. Eastern and Midland Railway Co. (1888), 38 Ch D 92, per Lindley, L. J. In the Companies Clauses Act 1845, section 122, special power was given to take copies, but where such power was not expressed it should not be inferred.

Counsel for the respondent were not called upon.